Mr. McCain (for himself
and Mr. Kyl) introduced the following
bill; which was read twice and referred to the
Committee on Homeland Security and
Governmental Affairs

A BILL

To implement a comprehensive border security plan to
combat illegal immigration, drug and alien smuggling, and violent activity in
the southwest border of the United States.

1.

Short
title

This Act may be cited as
the Border Security Enforcement Act of
2011.

2.

Definitions

In this Act:

(1)

Rural,
high-trafficked areas

The term rural, high-trafficked
areas means rural areas through which drugs and undocumented aliens are
routinely smuggled, as designated by the Commissioner of U.S. Customs and
Border Protection.

(2)

Secretary

The
term Secretary means the Secretary of Homeland Security.

(3)

Southwest
border region

The term Southwest Border region means
the area in the United States that is within 150 miles of the international
border between the United States and Mexico.

3.

National Guard
support to secure the southern land border of the United States

(a)

In
general

The Secretary of Defense shall deploy not fewer than
6,000 National Guard personnel to perform operations and missions under section
502(f) of title 32, United States Code, in the Southwest Border region for the
purposes of assisting U.S. Customs and Border Protection in securing the
international border between the United States and Mexico.

(b)

Assignment of
operations and missions

(1)

In
general

National Guard units and personnel deployed under
subsection (a) may be assigned such operations and missions as are necessary to
secure the international border between the United States and Mexico.

(2)

Nature of
duty

Duty by National Guard personnel performing such operations
and missions shall be full-time National Guard duty under title 32, United
States Code.

(c)

Range of
operations and missions

The operations and missions assigned
under subsection (b) shall include the temporary authority to—

(1)

construct
fencing, including double-layer and triple-layer fencing;

(2)

increase
ground-based mobile surveillance systems;

(3)

deploy additional
unmanned aerial systems and manned aircraft sufficient to maintain continuous
surveillance of the international border between the United States and
Mexico;

(4)

deploy and
provide capability for radio communications interoperability between U.S.
Customs and Border Protection and State, local, and tribal law enforcement
agencies;

(5)

construct
checkpoints along the border to bridge the gap to long-term permanent
checkpoints; and

(6)

conduct mobile
patrols and provide assistance to U.S. Customs and Border Protection,
particularly in rural, high-trafficked areas, as designated by the
Commissioner, U.S. Customs and Border Protection.

(d)

Materiel and
logistical support

The Secretary of Defense shall deploy such
materiel and equipment and logistics support as is necessary to ensure success
of the operations and missions conducted by the National Guard under subsection
(a).

(e)

Exclusion from
National Guard personnel strength limitations

National Guard
personnel deployed under subsection (a) shall not be included in the
calculation to determine compliance with limits on end strength for National
Guard personnel or on limits on the number of National Guard personal that may
be placed on active duty for operational support under section 115 of title 10,
United States Code.

(f)

Authorization
of appropriations

There is authorized to be appropriated
$600,000,000 to carry out this section during the 5-year period ending on
September 30, 2016.

4.

Personnel
enhancements

(a)

U.S. Customs
and Border Protection

Not
later than September 30, 2016, the Secretary shall increase the number of
trained Border Patrol agents stationed in the Southwest Border region by 5,000,
compared to the number of agents at such locations as of the date of the
enactment of this Act. The Secretary shall make progress in increasing such
number of trained Border Patrol agents during each of the fiscal years 2012
through 2016.

(b)

Hardship duty
pay

In addition to compensation to which Border Patrol agents are
otherwise entitled, Border Patrol agents who are assigned to rural,
high-trafficked areas shall be entitled to receive hardship duty pay, in an
amount determined by the Commissioner, U.S. Customs and Border Protection,
which may not exceed the rate of special pay to which members of a uniformed
service are entitled under section 310 of title 37, United States Code.

(c)

Danger pay for
United States Marshals Service and Bureau of Alcohol, Tobacco, Firearms and
Explosives personnel

Section 151 of the Foreign Relations
Authorization Act, Fiscal Years 1990 and 1991 (Public Law 101–246; 5 U.S.C.
5928 note) is amended by striking or Federal Bureau of
Investigation and inserting the Federal Bureau of Investigation,
the United States Marshals Service, or the Bureau of Alcohol, Tobacco, Firearms
and Explosives.

(d)

Authorization
of appropriations

(1)

Border patrol
personnel

There are authorized to be appropriated $300,000,000
for each of the fiscal years 2012 through 2016 to carry out subsection
(a).

(2)

U.S. marshals
service

In addition to amounts otherwise authorized to be
appropriated, there are authorized to be appropriated $15,000,000 for each of
the fiscal years 2012 through 2016, for salaries and benefits of United States
Marshals Service personnel.

(3)

Other
personnel

There are authorized to be appropriated, during the
5-year period ending on September 30, 2016—

(A)

$110,000,000 for
salaries and benefits for 500 new U.S. Customs and Border Protection officers;
and

(B)

$17,000,000 for
144 new Office of Air and Marine pilots, vessel commanders, and support
personnel.

5.

Enhancing
existing border security operations

(a)

Operation
Streamline

(1)

Implementation

The
Attorney General, the Secretary, and the Director of the Administrative Office
of the United States Courts shall—

(A)

fully implement
Operation Streamline in the Southwest Border region; and

(B)

reimburse State,
local, and tribal law enforcement for any detention costs related to such
implementation.

The chief judge of
each Federal judicial district in the Southwest Border region is authorized to
appoint additional full-time magistrate judges, who shall have the authority to
hear all cases and controversies in the district in which the respective judges
are appointed.

(b)

Operation
Stonegarden

(1)

In
general

The Federal Emergency Management Agency shall enhance law
enforcement preparedness and operational readiness in the borders of the United
States through Operation Stonegarden.

(2)

Allocation

Of
the amounts appropriated pursuant to subsection (e), not less than 90 percent
shall be allocated for grants and reimbursement to law enforcement agencies in
the States in the Southwest Border region for personnel, overtime, travel, and
other costs related to illegal immigration and drug smuggling in the Southwest
Border region.

(c)

Infrastructure
improvements

(1)

Border patrol
stations

The Secretary shall—

(A)

construct
additional Border Patrol stations in the Southwest Border region, as needed, to
provide full operational support in rural, high-trafficked areas; and

(B)

analyze the
feasibility of creating additional Border Patrol sectors along the
international border between the United States and Mexico to interrupt drug
trafficking operations.

(2)

Forward
operating bases

The Secretary shall enhance the security of the
Southwest Border region by—

upgrading the
existing forward operating bases to include modular buildings, electricity, and
potable water; and

(C)

ensuring that
forward operating bases surveil and interdict individuals entering the United
States unlawfully immediately after such an individual crosses the
international border between the United States and Mexico.

(3)

Checkpoints

The
Secretary shall—

(A)

complete the
construction of a permanent checkpoint near Tubac, Arizona; and

by adding at the
end the following: The Secretary shall replace landing mat fencing and
construct double- and triple-layer fencing in the Southwest Border region (as
defined in section 2 of the Border Security
Enforcement Act of 2011), at locations determined by the
Secretary, after consultation with the governors of the States in the Southwest
Border region and representatives of State, tribal, and local law enforcement
agencies..

(d)

Border security
on certain Federal land

(1)

Definitions

In
this subsection:

(A)

Secretary
concerned

The term Secretary concerned means—

(i)

with respect to
land under the jurisdiction of the Secretary of Agriculture, the Secretary of
Agriculture; and

(ii)

with respect to
land under the jurisdiction of the Secretary of the Interior, the Secretary of
the Interior.

(B)

Federal
lands

The term Federal lands includes all land,
including a component of the National Wilderness Preservation System, under the
control of the Secretary concerned that is located within 150 miles of the
Southwest border region.

(2)

Support for
border security needs

(A)

In
general

To achieve operational control of Federal lands—

(i)

the
Secretary concerned shall authorize and provide U.S. Customs and Border
Protection personnel with immediate access to Federal lands for security
activities, including—

(I)

routine motorized
patrols; and

(II)

the deployment
of temporary tactical infrastructure; and

(ii)

the security
activities described in clause (i) shall be conducted, to the maximum extent
practicable, in a manner that the Secretary of Homeland Security determines
will best protect the natural and cultural resources on Federal lands.

(3)

Inventory of
costs and activities

The Secretary shall—

(A)

coordinate with
the Secretary concerned to develop an inventory of costs incurred by the
agencies relating to illegal border activity on Federal lands; and

(B)

annually submit
the inventory developed under subparagraph (A) to—

(i)

the
Committee on Homeland Security and
Governmental Affairs of the Senate;

(ii)

the
Committee on the Judiciary of the
Senate;

(iii)

the
Committee on Appropriations of the
Senate;

(iv)

the
Committee on Homeland Security of the House of
Representatives;

(v)

the
Committee on the Judiciary of the House of
Representatives; and

(vi)

the
Committee on Appropriations of the House of
Representatives.

(4)

Intermingled
private and state land

This subsection shall not apply to any
private or State-owned land within the boundaries of Federal lands.

(e)

Authorization
of appropriations

(1)

Annual
appropriations

There are authorized to be appropriated, for each
of the fiscal years 2012 through 2016—

(A)

$50,000,000 to
carry out subsection (a);

(B)

$100,000,000 to
carry out subsection (b);

(C)

$20,000,000 to
carry out subsection (c)(2); and

(D)

$50,000,000 to
carry out section 102(b)(1)(A) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1103 note), as amended by subsection
(c)(4).

(2)

Permanent
checkpoint construction

There is authorized to be appropriated
$30,000,000 to carry out subsection (c)(3)(A).

(3)

Detention
upgrades at courthouses

There is authorized to be appropriated,
for each of the fiscal years 2012 through 2016, $4,000,000, which shall be used
to construct detention upgrades at Federal courthouses located in the Southwest
border region.

operate unmanned
aerial vehicles along such borders for 24 hours per day and for 7 days per
week;

(3)

deploy additional
fixed-wing aircraft and helicopters along such borders;

(4)

acquire new,
rotocraft and make upgrades to the existing helicopter fleet; and

(5)

increase horse
patrols in the Southwest Border region.

(b)

Authorization
of appropriations

In addition to amounts otherwise authorized to
be appropriated, there is authorized to be appropriated $335,000,000 to U.S.
Customs and Border Protection to carry out subsection (a) during fiscal year
2012.

7.

Access to
emergency personnel

(a)

Southwest
border emergency communications grants

(1)

In
general

The Secretary, in consultation with the governors of the
States in the Southwest Border region, shall establish a 2-year grant program,
to be administered by the Secretary, to improve emergency communications in the
Southwest Border region.

(2)

Eligibility for
grants

An individual is eligible to receive a grant under this
subsection if the individual demonstrates that he or she—

(A)

regularly resides
or works in the Southwest Border region;

(B)

is at greater
risk of border violence due to the lack of cellular service at his or her
residence or business and his or her proximity to such border.

(3)

Use of
grants

Grants awarded under this subsection may be used to
purchase satellite telephone communications systems and service that—

(A)

can provide
access to 9–1–1 service; and

(B)

are equipped with
global positioning systems.

(4)

Authorization
of appropriations

There is authorized to be appropriated
$3,000,000 to carry out the grant program established under this
subsection.

(b)

Interoperable
communications for law enforcement

(1)

Federal law
enforcement

There are authorized to be appropriated, to the
Department of Homeland Security, the Department of Justice, and the Department
of the Interior, during the 5-year period ending on September 30, 2016,
$35,000,000, which may be used—

(A)

to purchase,
through a competitive procurement process, P25-compliant radios, which may
include a multi-band option, for Federal law enforcement agents working in the
Southwest border region in support of the activities of U.S. Customs and Border
Protection and U.S. Immigration and Customs Enforcement, including law
enforcement agents of the Drug Enforcement Administration, the Bureau of
Alcohol, Tobacco, Firearms and Explosives, the Department of the Interior, and
the Forest Service; and

(B)

to upgrade,
through a competitive procurement process, the communications network of the
Department of Justice to ensure coverage and capacity, particularly when
immediate access is needed in times of crisis, in the Southwest Border region
for appropriate law enforcement personnel of the Department of Justice
(including the Drug Enforcement Administration and the Bureau of Alcohol,
Tobacco, Firearms and Explosives), the Department of Homeland Security
(including U.S. Immigration and Customs Enforcement and U.S. Customs and Border
Protection), the United States Marshals Service, other Federal agencies, the
State of Arizona, tribes, and local governments.

(2)

State and local
law enforcement

(A)

Authorization
of appropriations

There is authorized to be appropriated to the
Department of Justice, during the 5-year period ending on September 30, 2016,
$35,000,000 to purchase, through a competitive procurement process,
P25-compliant radios, which may include a multi-band option, for State and
local law enforcement agents working in the Southwest Border region.

(B)

Access to
Federal spectrum

If a State, tribal, or local law enforcement
agency in the Southwest Border region experiences an emergency situation that
necessitates immediate communication with the Department of Justice, the
Department of Homeland Security, the Department of the Interior, or any of
their respective subagencies, such law enforcement agency shall have access to
the spectrum assigned to such Federal agency for the duration of such emergency
situation.

8.

Southwest Border
Prosecution Initiative

(a)

Reimbursement
to State and local prosecutors for federally initiated criminal
cases

The Attorney General shall reimburse State, county, tribal,
and municipal governments for costs associated with the prosecution and
pre-trial detention of federally initiated criminal cases declined by local
offices of the United States Attorneys.

(b)

Authorization
of appropriations

There is authorized to be appropriated
$50,000,000 for each of the fiscal years 2012 through 2016 to carry out
subsection (a).

9.

Definition of aircraft
under aviation smuggling provisions of the Tariff Act of 1930

(a)

In
general

Section 590 of the
Tariff Act of 1930 (19 U.S.C. 1590) is amended—

(1)

by redesignating
subsection (g) as subsection (h); and

(2)

by inserting after
subsection (f) the following:

(g)

Definition of
aircraft

As used in this
section, the term aircraft includes an ultralight vehicle, as
defined by the Administrator of the Federal Aviation
Administration.

.

(b)

Effective
date

The amendments made by subsection (a) apply with respect to
violations of any provision of section 590 of the Tariff Act of 1930 on or
after the 30th day after the date of the enactment of this Act.

10.

Interagency
collaboration

The Assistant
Secretary of Defense for Research and Engineering shall collaborate with the
Under Secretary for Science and Technology of the Department of Homeland
Security in identifying equipment and technology used by the Department of
Defense that could be used by U.S. Customs and Border Protection to improve the
security of the international border between the United States and Mexico
by—

(1)

detecting border
tunnels;

(2)

detecting the use
of ultralight aircraft;

(3)

enhancing wide
aerial surveillance; and

(4)

otherwise
improving the enforcement of such border.

11.

Reports

(a)

Government
Accountability Office

Not later than 180 days after the date of
the enactment of this Act, the Comptroller General of the United States shall
submit a report to the Committee on
Homeland Security and Governmental Affairs of the Senate and
the Committee on Homeland Security of the House
of Representatives that includes—

(1)

an analysis of
the number of additional forward operating bases and checkpoints that are
necessary along the international border between the United States and Mexico
to assist in improving border security; and

(2)

the number of
additional personnel, infrastructure, and technology needed at land ports of
entry along the Southwest border to address current levels of northbound and
southbound cross-border inspections.

(b)

Department of
Homeland Security

Not later than 180 days after the date of the
enactment of this Act, the Secretary shall submit a report to the
Committee on Homeland Security and
Governmental Affairs of the Senate and the
Committee on Homeland Security of the House of
Representatives that includes—

(1)

an audit of the
equipment and technology that was procured to be used through the SBInet
program; and

(2)

an analysis of
whether the procured equipment and technology can continue to be used by U.S.
Customs and Border Protection.

(c)

Joint equipment
and technology report

The Under Secretary of Defense for
Acquisition, Technology, and Logistics and the Under Secretary for Science and
Technology of the Department of Homeland Security shall submit a joint report
on the results of the collaboration under section 10 to—

(1)

the
Committee on Armed Services of the
Senate;

(2)

the
Committee on Homeland Security and
Governmental Affairs of the Senate;

(3)

the
Committee on Armed Services of the House of
Representatives; and

(4)

the
Committee on Homeland Security of the House of
Representatives.

12.

Rescission of
unspent Federal funds to offset loss in revenues

(a)

In
general

Notwithstanding any other provision of law, of all
available unobligated funds, $4,030,000,000 in appropriated discretionary funds
are rescinded.

(b)

Implementation

The
Director of the Office of Management and Budget shall determine and
identify—

(1)

the appropriation
accounts from which the rescission under subsection (a) shall apply; and

(2)

the amount of
such rescission that shall be applied to each such account.

(c)

Report

Not
later than 60 days after the date of the enactment of this Act, the Director of
the Office of Management and Budget shall submit a report to Congress and the
Secretary of the Treasury that describes the accounts and amounts determined
and identified for rescission under subsection (b).